Velazquez-Perez v. Developers Diversified Realty Corp. et al, No. 3:2010cv01002 - Document 39 (D.P.R. 2011)
Court Description: OPINION AND ORDER DENYING re 17 MOTION to Compel filed by Antonio Velazquez-Perez, DENYING 34 MOTION to Compel MOTION for Sanctions as to DDR PR Ventures II LLC, Developers Diversified Realty Corp. filed by Antonio Velazquez-Perez Signed by Chief Mag. Judge Justo Arenas on 1/28/2011.(nydi)
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Velazquez-Perez v. Developers Diversified Realty Corp. et al 1 Doc. 39 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 ANTONIO VELÁZQUEZ-PÉREZ, 5 6 Plaintiff 7 v. 8 DEVELOPERS DIVERSIFIED REALTY CORP.; DDR PR VENTURES II LLC, 9 10 CIVIL 10-1002 (JA) Defendant 11 12 OPINION AND ORDER 13 14 This matter is before the court on two motions to compel discovery filed by 15 plaintiff, Antonio Velázquez-Pérez, on October 22, 2010 and December 27, 2010. 16 (Docket Nos. 17 & 34.) The defendant, Developers Diversified Realty Corp.; DDR 17 18 PR Ventures II LLC, opposed plaintiff’s motions on October 25, 2010 and 19 December 28, 2010. (Docket Nos. 19 & 35.) For the reasons set forth below, 20 plaintiff’s motions to compel are hereby DENIED. 21 I. OVERVIEW 22 23 24 In the first motion to compel plaintiff requests that the defendant be ordered to produced any and all emails, letters and documents that might have been 25 exchanged between Mrs. Rosa Martínez and Mr. Rolando Albino. (Docket No. 17, 26 at 1-2.) According to plaintiff, Mrs. Rosa Martínez and Mr. Rolando Albino were 27 directly involved in the adverse employment actions (subject of the complaint) 28 Dockets.Justia.com 1 CIVIL 10-1002 (JA) 2 2 3 4 5 taken against him. (Id.) In essence, plaintiff alleges that the defendant failed to 6 produce the documents requested when it responded to the first set of 7 interrogatories and request for production of documents, on October 11, 2010. 8 (Id. at 1.) He claims that even though he tried to obtain the documents and was 9 10 told by the defendant’s counsel that they would be given to him, the documents 11 were never produced. (Id. at 1-2.) Plaintiff states that the documents requested 12 are needed to prepare for the taking of a deposition and to conduct additional 13 discovery. (Id. at 2.) 14 15 The defendant, in turn, argues that plaintiff’s counsel ignored Local Civil 16 Rule 26(b) by not making any effort whatsoever to meet and confer with its 17 counsel in order to discuss the issue. (Docket No. 19, at 2, ¶ 2.) The defendant 18 claims that contrary to what plaintiff alleges, its attorney never received a phone 19 20 call from his counsel in connection with the discovery dispute. (Id.) Furthermore, 21 the defendant argues that even though the documents were requested on two 22 occasions via email, plaintiff’s counsel was told that some of the documents had 23 already been produced while others were still trying to be gathered. (Id. at 2, ¶ 24 3.) According to the defendant, plaintiff’s counsel was also offered to meet and 25 26 27 28 confer as required by Local Civil Rule 26(b) but that plaintiff declined to do so. 1 CIVIL 10-1002 (JA) 3 2 3 4 5 6 (Id.) Thus, the defendant requests that plaintiff’s motion to compel be stricken. (Id.) 7 8 In the second motion to compel plaintiff reiterates his position regarding the defendant’s failure to produce the documents requested including those involving 9 10 Mrs. Rosa Martínez and Mr. Rolando Albino. (Docket No. 34, at 1.) Plaintiff claims 11 that several letters were sent requesting the documents, but that he was told by 12 the defendant’s counsel that the documents were not going to be produced. (Id. 13 at 2.) According to plaintiff, the defendant’s counsel told his attorney that the 14 15 deposition had to be taken before they produce any of the documents requested. 16 (Id.) 17 requested have disrupted and delayed the proceedings. (Id. at 3.) As a result, 18 Plaintiff states that the defendant’s failure to produce the documents plaintiff requests that the defendant’s affirmative defenses be stricken, or in the 19 20 21 alternative that they not be allowed to conduct discovery nor file any type of dispositive motion. (Id.) 22 The defendant counters that, like the first motion to compel, the second 23 motion to compel has to be stricken because it was filed without any attempt to 24 meet and confer under Local Civil Rule 26(b). (Docket No. 35, at 1, ¶ 1.) In 25 26 27 28 addition, the defendant claims that plaintiff also failed to comply with Federal Rule of Civil Procedure 37(a)(1) by not including with the motion a certification stating 1 CIVIL 10-1002 (JA) 4 2 3 4 5 that an attempt in good faith was made to meet and confer in order to solve the 6 discovery dispute without the court’s intervention. (Id. at 1-2, ¶¶ 2 & 3.) The 7 defendant argues that the letters sent by plaintiff’s counsel prove that there was 8 no intent on his part to meet and confer as required by Local Civil Rule 26(b) and 9 10 Federal Rule of Civil Procedure 37(a)(1). (Id.) Furthermore, the defendant 11 argues that plaintiff’s allegation that his attorney was told by opposing counsel 12 that the documents requested were not going to be produced, is false and 13 misleading. (Id. at 2-3, ¶ 4.) The defendant claims that the documents 14 15 requested were in fact produced, including some of the emails exchanged between 16 Mrs. Rosa Martínez and Mr. Rolando Albino. (Id.) The only documents that the 17 defendant claims were not produce were those that were irrelevant, burdensome, 18 over-broad, and/or contained private confidential information of third parties who 19 20 are not related to the case. (Id.) Finally, the defendant claims that many of 21 plaintiff’s answers to their interrogatories and request for productions were 22 objected to, but that plaintiff has not provided any response. (Id. at 3, ¶ 5.) 23 Aside from requesting that the motion to compel be stricken, the defendant seeks 24 an award of attorneys’ fees and reasonable expenses incurred in opposing the 25 26 27 28 motions to compel filed by plaintiff. (Id. at 4.) 1 CIVIL 10-1002 (JA) 5 2 3 4 5 II. ANALYSIS 6 Local Rule 26(b) and Federal Rule of Civil Procedure 37(a)(1) require that 7 before filing a motion to compel, the moving party has to certify that it “has made 8 a reasonable and good-faith effort to [try and solve the discovery dispute] with 9 10 opposing counsel” without the court's intervention. Local Rules of the U.S. Dist. 11 Court for the Dist. of P.R. Rule 26(b); see Fed. R. Civ. P. 37(a)(1); Brenford Envtl. 12 Sys. L.P. v. Pipeliners of P.R., 269 F.R.D. 143, 147 (D.P.R. 2010). “An attempt 13 to confer will not suffice.” Local Rule 26(b); Vázquez-Fernández v. Cambridge 14 15 Coll., Inc., 269 F.R.D. 150, 163 (D.P.R. 2010). 16 In this case, it is clear that plaintiff has failed to comply with the provisions 17 of Local Civil Rule 26(b) and Federal Rule of Civil Procedure 37(a)(1). First, 18 plaintiff in neither motion included a certification stating that he attempted in 19 20 good faith to discuss the discovery dispute either personally or through a 21 telephone conference. Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. 31, 40-41 22 (D.P.R. 2010) (citing Shuffle Master, Inc. v. Progressive Games Inc., 170 F.R.D. 23 166, 172 (D. Nev.1996)). Second, a careful examination of the emails and letters 24 sent by plaintiff’s counsel to the defendant’s attorney does not reveal that a good 25 26 27 28 faith effort was made in order to reach an agreement over the discovery dispute. Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. at 40-41 (citing Antonis v. Elec. 1 CIVIL 10-1002 (JA) 6 2 3 4 5 for Imaging, Inc., 2008 WL 169955, at *1 (D.N.H. Jan. 16, 2008) (“emails . . . 6 do[ ] not meet the requirement that the parties confer in good faith about 7 discovery issues before invoking judicial remedies”); Ross v. Citifinancial, Inc., 8 203 F.R.D. 239, 240 (S.D. Miss. 2001) (the meet and confer “prerequisite is not 9 10 11 12 13 an empty formality” and “cannot be satisfied by including with the motion copies of correspondence that discuss the discovery at issue”)). The only thing that can be drawn from these communications is plaintiff’s unwillingness to solve the dispute by threatening the defendant with filing a 14 15 motion to compel if the documents requested were not produced. (Docket No. 16 17-1, at 1 & 2.) The record shows that the defendant was willing to meet with 17 plaintiff in order to solve the discovery dispute but that plaintiff never acceded to 18 that fairly simple request. (Docket No. 19-1.) Also, the record reflects that the 19 20 defendant’s attorney explained to plaintiff’s counsel that even though it did not 21 appear from the index of documents that the email communications exchanged 22 between Mrs. Rosa Martínez and Mr. Rolando Albino had been produced, some 23 were included with all of the other documents that were provided. (Id.) “Thus, 24 plaintiff[’s] failure to comply with the meet and confer requirements constitutes 25 26 27 28 sufficient reason to deny the motions to compel.” Aponte-Navedo v. Nalco Chem. Co., 268 F.R.D. at 41. 1 CIVIL 10-1002 (JA) 7 2 3 4 5 Although the defendant, as the prevailing party, has a right to request 6 reasonable expenses, including attorneys’ fees, incurred in opposing the motions 7 to compel, Federal Rule of Civil Procedure 37(a)(5)(B) requires the court to allow 8 plaintiff to show that the motions were reasonably justified, making an award 9 10 unjust. Cf. Jiménez v. Amgen Mfg. Ltd., 695 F. Supp. 2d 5, 8 (D.P.R. 2010); 11 Colón v. Blades, 268 F.R.D. 129, 131-32 (D.P.R. 2010). As such, I will not order 12 the payment of said expenses until such time as plaintiff is heard. Cf. CoStar 13 Realty Inf., Inc. v. Field, --- F. Supp. 2d --- 2010 WL 3369349, at *15-16 (D. Md. 14 15 16 Aug. 23, 2010); O. Ahlborg & Sons, Inc. v. United States, 233 F.R.D. 224, 226-27 (D. Mass. 2005); Notice v. DuBois, 187 F.R.D. 19, 20 (D. Mass. 1999). 17 18 III. CONCLUSION For the reasons set forth above, plaintiff’s first and second motion to compel 19 20 (Docket Nos. 17 & 34) are hereby DENIED. Accordingly, plaintiff is ordered to 21 show, in accordance with Federal Rule of Civil Procedure 37(a)(5)(B), whether the 22 motions to compel were substantially justified or if there were any other 23 circumstances that would make an award for reasonable expenses and attorneys’ 24 fees inappropriate. 25 26 27 28 At San Juan, Puerto Rico, this 28th day of January, 2010. S/ JUSTO ARENAS Chief United States Magistrate Judge
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